People v. Andrews

• Decision Date: 24 July 2013
• Citation: 970 N.Y.S.2d 226,108 A.D.3d 727,2013 N.Y. Slip Op. 05469
• Parties: The PEOPLE, etc., respondent, v. Churchill ANDREWS, appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 727
970 N.Y.S.2d 226
2013 N.Y. Slip Op. 05469

The PEOPLE, etc., respondent,
v.
Churchill ANDREWS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 24, 2013.

[970 N.Y.S.2d 227]

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Solomon Neubort of counsel), for respondent.

Immigrant Defense Project, New York, N.Y. (Alisa Wellek of counsel), amicus curiae.

RANDALL T. ENG, P.J., MARK C. DILLON, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Ferdinand, J.), dated April 20, 2011, which denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered September 3, 2008, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed.

On March 14, 2008, the defendant, a native of Guyana and a lawful permanent resident of the United States, pleaded guilty to criminal sale of a controlled substance in the fifth degree, upon the understanding that if he successfully completed drug treatment, his plea would be vacated. The defendant failed to complete drug treatment and, on September 3, 2008, was

[970 N.Y.S.2d 228]

sentenced to a term of six months of imprisonment. Thereafter, the Immigration and Customs Enforcement Unit of the United States Department of Homeland Security initiated removal proceedings against the defendant on the ground that the conviction was a deportable offense. On September 24, 2010, the defendant, citing Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, moved to vacate the conviction on the ground that he was deprived of the right to the effective assistance of counsel by his attorney's alleged failure to advise him of the immigration consequences of his plea. The Supreme Court summarily denied the defendant's motion, based upon its conclusion that Padilla did not apply retroactively, and, additionally, upon finding that the defendant failed to show that his defense was prejudiced by defense counsel's purported failure to advise him of the deportation consequences of his plea. By decision and order on motion dated August 17, 2011, a Justice of this Court granted leave to appeal from the Supreme Court's order.

On February 20, 2013, the United States Supreme Court, in Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149, held that Padilla, decided on March 31, 2010, announced a new rule pursuant to the principles set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. As such, the Supreme Court concluded that the rule does not apply retroactively to persons whose convictions became final before Padilla was decided.

Here, pursuant to Chaidez, the...